Oral arguments were heard at the Supreme Court today in Sackett, et al., v. EPA, challenging actions by the Environmental Protection Agency to keep Michael and Chantell Sackett from building their home on land belatedly declared damp by the agency.

Construction screeched to a halt upon the order of three agents of the Environmental Protection Agency. The property was a federally protected “wetlands,” the Sacketts were told, and they were served with a compliance order to immediately restore the property to its prior condition.

In fact, the EPA compliance order went even further. Relying on authority it claimed to have received under the Clean Water Act, EPA officials prescribed a set of conditions that went beyond the prior condition of the property when the Sacketts purchased it.

The Sacketts were ordered to plant “native scrub-shrub, broad-leaved deciduous wetlands plants and [have the property] seeded with native herbaceous plants.” Further, they were ordered to fence the property and monitor plant growth for three years.

All of this came as quite a shock to the Sacketts because their sliver of land was located in a platted residential subdivision with water and sewer hook-ups, and was bordered by roads on the front and rear and existing homes on either side.

There wasn’t any natural running or standing water on the property. None of the surrounding homes in the community were designated as having occupied wetlands.

With a federal government lawyer conceding almost every criticism leveled at the way the U.S. Environmental Protection Agency compels landowners to avoid polluting the nation’s waterways, the Supreme Court on Monday seemed well on its way toward finding some way to curb that agency’s enforcement powers. Their task was made easier as Deputy U.S. Solicitor General Malcolm L. Stewart stopped just short of saying that EPA was just as heavy-handed as its adversaries — and several of the Justices — were saying.

Perhaps the most telling example: when several of the Justices expressed alarm that a homeowner targeted by EPA’s efforts might face a penalty of as much as $37,500 each day of alleged violation, Stewart made it clear that the fine actually might be doubled, to $75,000 a day, although he tried to recover by saying that was only “theoretical,” and that he did not think that EPA had ever taken that step.

It is sometimes a fool’s game to try to guess about final results on the basis of oral argument. This just might be an exception that proves the rule. The SCOTUS BLOG article is well worth reading.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.

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18 Comments, 7 Threads

What’s the remedy? Even if the case is decided against the EPA what is to stop them from doing it again? I’m no lawyer obviously so that’s why I’m asking. Can the SCOTUS really stop the EPA or will this just be a narrow ruling that has little effect upon the agency’s practices overall?

Obviously, it all depends on what the Court says. Traditionally, the Supreme Court casts its holdings — the legally binding parts of its decisions — no more broadly than necessary. However, if the rest of the language in the decision makes the EPA look silly and to have acted far beyond its statutory mandate that language may well temper future EPA actions.

Chief Justice Roberts had it right- the 2nd Amendment is a doomsday provision, to be utilized only as an absolute last resort, when all other means to secure liberty have been exhausted. By all means keep your guns, but under no circumstances are you to initiate violence. If civil war comes, it must come because the government has declared war against its own people, not because a group of rebels decided they weren’t interested in pursuing what peaceful means remained to secure their liberty. Remember that it was the British who started the Revolutionary War with their unprovoked attack on Lexington and Concord, not the revolutionaries who defended themselves against said unprovoked attack.

I totally agree but lets say, just for the heck of it, it is 2014 and Obama was able to appoint 2 more ultra liberal judges to the Supreme Court who firmly believe that the end justifies the means. Who do you appeal to then, the UN????

I guess my real point was what do you do when the Supreme Court disregards the constitution? What exactly is the next step after that? Don’t tell me that it can’t happen since the very fact that this case got as far as it did tells me that something is very wrong with our legal system.

Hey Mon, whatcha got against them banana republics? Us’uns needs some place to go.

For what, if anything, it’s worth, my wife and her singing group do the song better than Jimmy Buffett but it is marginally possible that I am just a tad biased. I’d post hers but it isn’t yet on YouTube.

Nah. They probably were going to block some neighbor’s view by building their house. Just find out how the EPA became involved in this. When it becomes clear, that it was some petty neighborhood squabble where one of the parties went nuclear, then the job of the SCOTUS gets very easy.

That it might have all been caused by a disgrutled nieghbor makes a lot of sense. Particularly if it was a Democrat donor. This reminds me of a segment I heard on NPR once called Monkeywrenching. The Sierra Club types and their earth liberation friends really do think it all belongs to them.

This is just nuts. Any property can potentially become a ‘wetlands’ if it rains heavy enough. I’ve seen 20 to 40 year old neighborhoods flooded out by a freak thunderstorm. Any place on earth can get real soggy with too much rain. Even Death Valley has been flooded on occasion. I live in a semi-desert area and have had a couple of times where a heavy down-poor has made my yard a mini lake. It’s not because it’s a ‘wetland’, it’s because we have dense clay soil that absorbs water slowly. After a day it’s back to normal. I think somebody at the EPA has a little too much time on their hands.